Laws and policies framing the entitlements of migrants to welfare benefits lie at the intersection of two of Europe’s most contentious contemporary public debates: immigration and welfare. These often tense and emotive debates are the subject of a forthcoming study soon to be published by COMPAS, and funded by the Open Society Foundations. Focusing on two European cities – Berlin and Madrid – we examine how laws and policies in these two cities frame entitlements and exclusions to welfare benefits for migrant children and their families; how these families access or are unable to access services to which by law they are entitled; the implications when they are not entitled or able to access those services, and the ways in which the state and NGOs have responded to any problems these exclusions create.

Fifty-five interviews were conducted in the two cities with social workers, lawyers, welfare rights advisors, voluntary sector advocates, and integration specialists across the statutory and NGO sectors. The pilot study is part of the welfare cluster’s broader research programme looking at welfare entitlements of migrant families, including a larger study focusing on the UK.

We identified two forms of exclusion to welfare benefits in our study: firstly, gaps in the legal and policy frameworks that are designed to exclude certain migrant families. In both cities, migrants with irregular status were excluded from welfare benefits; these exclusions extended to some mobile EU citizens in Berlin and those with less than a year’s residence in Madrid. Secondly, problems in the implementation of policies meant that some migrant families were unable to access support to which by law they were entitled. Several factors were identified to account for this gap between policy and practice: the use of discretion by ‘street-level bureaucrats’ (public servants enacting statutory powers and duties) influenced by their own ‘moral agency’; flexibility embedded within legislation giving public servants powers to extend services or to sanction claimants; poor understanding due to complex legal frameworks; and a lack of capacity in Madrid following austerity measures and cuts to public services.

For those who fall through the gaps of statutory support, whether by design of law and policy or the failure of welfare services to carry out statutory duties, the implications can be severe, destitution in particular being a condition seen frequently by research participants. Destitution can be in the form of families sleeping in parks or abandoned factories; or more commonly ‘sofa surfing’, with children living in unpredictable and insecure forms of accommodation.

In both cities we found formalised systems that seek to address part of the fall-out of restrictive welfare policies. In Berlin, this took the form of a legal entitlement to accommodation and subsistence for those deemed to be non-deportable yet ‘tolerated’ by the authorities, and in Madrid a less formalised but nonetheless state-funded network of NGO-managed temporary accommodation projects for destitute migrant families. Such mechanisms implicitly recognise the potential implications of welfare restrictions and the need to implement measures to prevent destitution and the associated risks facing migrant children and their families.

The safeguarding risks identified by participants in both cities bring to light some concerning implications of welfare restrictions. Attempts by the state to mitigate these risks could be characterised as ‘sticking plaster solutions’, operating at the margins of welfare systems and arguably call for a debate about more sustainable solutions to migrant destitution and a more proportionate welfare exclusions policies in the context of safeguarding risks to children and their families.